The Colonial Hangover of India’s Rape Law

Women lawyers protested against the police and government in front of the newly inaugrated fast-track court, New Delhi, Jan. 3.

By now, most people following the story of the tragic death of the young woman in Delhi, gangraped on a bus and left to die, will be aware of India’s abysmal recent track record in bringing perpetrators in such cases to justice.

Indeed, it’s arguably only the very high profile that surrounds this case that’s led to the speed with which the case has come before court. Within three weeks, five men accused of a wide range of crimes in the case were fomally charged Thursday. A sixth faces a case in juvenile court. Such speed is hardly usual in India.

Bringing charges, of course, is one thing. Securing a conviction is quite another. And India’s history shows difficulty in securing a conviction in a rape case, and the high probability that a conviction might be overturned, have been features of the criminal justice system right from the establishment of the Indian Penal Code in 1860.

Many readers will probably be aware that Thomas Macaulay was the architect of India’s education system. But among the many other important ways in which he shaped British and, indeed, contemporary India, a commission he headed formed the basis for the IPC. Much as with the introduction of English education, Lord Macaulay’s intention was to create a criminal law for India modeled on that of Great Britain.

As things turned out, the architects of the Indian republic chose to retain the IPC in the new, independent India virtually unchanged from the colonial period, a legacy Indians still live with to this day.

While inheriting the English legal system might have been good in some respects, one legacy has been very damaging: the way that 19th-century British law thought about the crime of rape.

As persuasively argued by Elizabeth Kolsky a history professor at Villanova University in the U.S., the continuing difficulty with securing convictions in rape cases in India is a direct product of this colonial history.

As I’ve written in several recent pieces, in 2011, only 26% of rape trials ended in conviction. In Delhi for instance, where this crime took place, there’s only been one conviction out of 635 cases of rape reported in 2011. If the conviction rate is low now, the situation wasn’t any better in the colonial period.

We can’t make a direct comparison with pre-independence times because we don’t have detailed records of what happened at the level of trial courts then. But we can draw inferences from what happened in the High Courts, which were — and remain — courts of appeal for lower-court decisions.

According to data analyzed by Ms. Kolsky, between 1904 and 1947, there were 75 rape convictions sent up to the High Court for review. The High Courts confirmed only 37% of convictions from the lower courts. In the remaining cases, they either acquitted or reduced the sentences of the defendants.

The reasons for the difficulty in securing and upholding rape convictions in India at that time, as now, can be traced to the colonial legal system, as Ms. Kolsky argues.

Principally, it is the extremely strict evidentiary requirements under the law that are needed to establish that a rape occurred, much higher than in other crimes of violence. To put it bluntly, the victim is as much on trial as her alleged attacker.

Without going into the technical legal details, the Indian law on rape and the legal precedents that developed around it tended to presume that the victim had engaged in consensual sex unless there was enough evidence to corroborate her claim that the sexual intercourse was non-consensual and she had been raped.

This presumption of consent was embodied in Section 155 (4) of the Indian Evidence Act, which allowed defendants to offer evidence about a victim’s character and sexual history.

That gives defense lawyers an avenue to discredit them by suggesting that either they were maliciously and falsely making an accusation of rape or that the sex had been consensual. Incredibly, this section of Indian law remained on the statute books until 2002.

Even though it has been altered, practices and attitudes haven’t changed that much. The continuing use of the notorious “two finger test” to determine if the victim has had a history of sexual intercourse is sufficient testament to this fact.

Before now, independent India’s most significant rape trial was the so-called “Mathura” case. On March 26, 1972, Mathura, a 16-year-old tribal girl, was allegedly gang-raped by a police constable and his deputy while she was in their custody in a police station in the state of Maharashtra.

When the case came to trial two years later, the judge described the victim as a “loose woman” who obviously had consented to sexual intercourse and subsequently lied about it, and used that extraordinary reasoning as the basis for acquitting the defendants.

The Supreme Court of India upheld the acquittal, arguing that the victim’s failure to raise the alarm during the alleged rape, plus the fact that her body didn’t show signs of injury, amounted to evidence of consent.

The uproar resulting from this judgment prompted activists to petition the government to change the law. A minor change in the law did take place in 1983, but that focused on what is called “custodial rape” ( rape when one is in the custody of the authorities) in where it would no longer be necessary to prove lack of consent.

Overall, however, India’s law on rape and how cases of rape are handled by the police and the judicial system still reflect the colonial mentality that prevailed when Lord Macaulay first set up the IPC.

As recently as last year, an alleged rapist was acquitted because the judge inferred from the fact that the victim apparently didn’t resist her attacker with sufficient vigor showed that the sex was consensual.

By the standards of the mid-19th century, the IPC may have been progressive even if the British legal tradition it was based on was grounded in a medieval, patriarchal understanding of the place of women in society.

It’s a cruel irony that while Britain, along with most western countries, have modernized their antiquated laws on rape, Indians are still shackled by it well into the 21st century.

It’s incredible, for instance, that Indian law still excuses “marital rape,” which presupposes that a woman can never legitimately deny sex to her husband.

Unfortunately, in my reading of it, the much vaunted Verma Commission that’s been constituted to reform India’s rape laws and the functioning of the criminal justice system appears to be focused on the speed of trials, quicker justice and more severe punishment.

But instituting fast-track courts, as many people have called for, will by itself do nothing to reform a law that’s still heavily biased against the victims of rape. Nor will fast-track courts change the mindsets of judges hearing cases.

According to a survey by Sakshi, an NGO active in gender issues, 74% of judges surveyed a decade ago believed that “preservation of the family” should be a principal concern for women even in the event of violence in the home. And 51% believed that women who stay with abusive husbands are “partly to blame” for their plight. Some 68% felt that “provocative attire was an invitation to rape” and 55% felt that the “moral character of the victim” was relevant.

While Indians introspect on the many things that need to change to prevent tragedies like the one that happened in New Delhi on Dec. 16, we should not forget the complex interaction between a culture with a misogynistic strand and an archaic misogynistic legal system that is deadly for India’s women.

Rupa Subramanya writes Economics Journal for India Real Time and is co-author of “Indianomix: Making Sense of Modern India,” published by Random House India. You can follow her on Twitter @RupaSubramanya.

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